IE  APPELLATE  COURT  OF  COOK  COUNTY,  ILL. 


RENDERS  A  SWEEPING  OPINION  ON 


fhe  Closed  Shop 


CALLS  IT 


A  TRUST,”  IN  RESTRAINT  OF  TRADE,  AND  AN 
ILLEGAL  MONOPOLY. 


CONTRACTS  TO  HIRE,  ONLY  UNION  LABOR 
ARE,  CRIMINAL  COMPACTS,  MAKING 
EMPLOYERS  AS  WELL  AS  EMPLOYES 
LIABLE,  TO  IMPRISONMENT  -  THE, 
FREEDOM  OF  NONUNION  MEN 
IS  UPHELD. 


Hits  Closed  Shop, 


Union  labor’s  restrictions  excluding  the  nonunion  work¬ 
man  from  “unionized”  factories,  stores  or  workshops 
have  been  branded  as  outlaw  regulations  in  an  epoch- 
making  opinion  handed  down  last  week  in  the  appellate 
court  of  Cook  county.  In  the  opinion,  which  was  written 
by  Judge  Adams,  with  Judges  Windes  and  Ball  con¬ 
curring,  the  “open  shop”  for  which  employers  have  been 
contending  is  vindicated  and  upheld,  while  its  antithesis 
and  “rival,”  the  “closed  shop,”  enforced  by  the  unions, 
is  permanently  put  outside  the  breastworks  of  legality, 
as  contravening  and  abridging  the  contract  rights  guaran- 
teed  by  common  law  and  the  laws  and  constitution  of  the 
state  of  Illinois. 

In  the  important  matter  of  contract  rights  the  decision 
is  the  most  sweeping  imaginable.  It  holds  that  the 
“closed  shop”  agreements  exacted  from  employers  by 
labor  unions  constitute  an  illegal  infringement  of  con¬ 
tract  rights,  and  that  the  provision  in  such  agreements 
binding  an  employer  to  hire  none  but  members  of  a  labor 
:  union  is  an  illegal  abridgement  of  liberty,  discriminating 
in  favor  6f  one  class  of  working  people  and  excluding 
all  others. 

A  startling  phase  of  the  decision  is  that  it  puts  into  the 
hands  of  the  nonunion  man,  should  he  care  to  avail  him¬ 
self  of  the  privilege,  one  of  the  most  powerful  weapons 
in  the  law’s  great  armory.  This  formidable  weapon  is 
found  in  the  taint  of  “criminality”  which  the  decision  at¬ 
tributes  to  the  conduct  of  the  parties  contracting  to  main¬ 
tain  or  establish  the  “closed  shop.” 

The  employer  who  signs  the  closed-shop  contract,  as 


2 


wellw«af  Jtfje  febor  union  which  procures  his  signature  by 
**  *,  threats  lib  Strikes*  or  in  other  ways,  is  in  this  opinion 
V  -JteTd‘  to  {be;^fc^rifible  to  the  criminal  laws  for  conspiring 
tojqj  Wreathe,  property  rights5'  of  a  workman  in  his  labor. 

^Jjtc'in  th.e  future  any  employer  signs  a  closed-shop 
•  agreement^ wiilf  union  or  non-union  workers,"  said  one 
of  fth^; -lading  lawyers  in  the  case,  “such  employer  will 
No So  with  the  full  knowledge  that  he  is  laying  himself 
liable  to  the  criminal  as  well  as  the  civil  code,  and  that 
any  nonunion  or  union  workman  excluded  under  the 
signed  agreement  has  a  double-edged  weapon  of  the  law 
with  which  to  enforce  his  right  to  be  free  from  the  handi¬ 
cap  of  a  conspiracy  of  discrimination  when  he  seeks  em¬ 
ployment  in  any  workshop,  store,  factory  or  other  place 
of  business." 

It  will  even  be  a  crime  to  submit  a  closed-shop  agree¬ 
ment  in  the  future  to  an  employer  for  his  signature.  For 
it  is  itself  a  crime  to  ask  anybody  to  commit  a  crime. 

IS  CLOSED  SHOP  CRIMINAL? 

From  this  point  of  view  the  decision  may  be  regarded 
as  putting  the  ban  of  criminality  as  well  as  illegality  upon 
all  the  closed-shop  agreements  actually  obtained  or  vainly 
demanded  by  members  of  labor  unions  from  their  employ- 
*  ers.  Should  the  employer  be  able  to  show  that  he  signed 
the  closed-shop  contract  under  the  compulsion  of  a  threat¬ 
ened  strike  he  may  be  able  to  escape  liability.  But  in 
every  case  where  he  enters  into  the  exclusive  agreement 
voluntarily  the  employer  is  likely  to  be  adjudged  equally 
as  guilty  under  the  law  as  the  labor  union  members  or 
officials  at  whose  solicitation  he  executes  the  illegal  con¬ 
tract. 

Contracts  or  agreements  for  the  maintenance  of  the 
“closed  shop"  are  therefore  merely  so  much  worthless 
paper.  From  the  point  of  view  of  law  and  constitutional 
guarantees  they  are  even  worse  than  worthless.  It  might 
be  that  the  very  act  of  circulating  them  would  be  con¬ 
strued  to  be  a  crime,  and  it  certainly  could  not  be  a  very 


3 

safe  or  comfortable  thing  for  a  walking  delegate  or  other 
labor  leader  to  be  caught  with  a  supply  of  them  in  his 
pockets.  Mere  possession  of  them  might  not  be  deemed 
a  crime,  but  should  any  of  the  documents  have  a  bona 
fide  signature  a  good  deal  of  trouble  might  follow  at  the 
hands  of  anybody  who  should  care  to  put  the  machinery 
of  the  courts  in  motion. 

Another  remarkable  feature  of  the  ruling  is  that  under 
its  terms  all  the  closed-shop  contracts  wrung  from  em¬ 
ployers  under  duress  or  threats  of  strikes  and  other  trou¬ 
bles,  are  obviously  rendered  null  and  void.  Employers 
cannot  be  held  by  them  to  the  maintenance  of  the  closed 
shops  promised.  The  agreements  have  no  binding  force 
in  law,  the  employer  incurs  no  legal  obligation  under 
them,  the  performance  of  none  of  the  restrictive  regula¬ 
tions  will  be  enforced  by  a  court  and  the  members  of  the 
labor  unions  secure  no  legal  rights  or  advantage  from 
the  employer’s  signature. 

UNIONS  WORSE  OFF  THAN  BEFORE. 

What  is  more,  it  even  seems  that  union  workers  who 
have  wrung  a  closed-shop  agreement  from  an  employer 
are  really  worse  off  for  having  obtained  it.  For  in  the 
event  that  they  strike  to  enforce  its  terms  they  incur 
an  additional  responsibility  under  the  criminal  laws — an 
additional  responsibility  that  would  not  exist  if  the  ille¬ 
gal  contract  had  not  been  obtained. 

It  is  likely,  therefore,  that  this  momentous  decision 
will  be  of  more  far-reaching  effect  than  is  yet  dreamed 
of  either  by  the  union  workers  or  the  employers.  How 
it  can  fail  to  influence  the  employers  is  not  an  easy  thing 
to  reason  out.  Almost  without  a  doubt  it  will  “stiffen 
their  backbones”  in  the  fight  they  have  been  making  for 
“the  open  shop.”  But  what  is  even  more  significant  is 
that  the  decision — should  it  be  upheld,  as  seems  certain, 
in  the  supreme  tribunals  of  the  state  or  nation — is  prac¬ 
tically  certain  to  result  in  the  complete  abrogation  of  the 
“closed-shop”  contracts  between  employers  and  employes, 
as  neither  of  the  traditional  parties  to  such  contracts  will 


4 

care  to  place  themselves  in  the  power  of  the  criminal  pros¬ 
ecutors. 

In  the  true  and  literal  sense  the  death  knell  of  the 
closed  shop  has,  therefore,  been  sounded  in  Illinois.  In¬ 
dictment  and  criminal  trials  and  convictions  of  the  parties 
to  such  agreements,  whether  employers  or  employes, 
might  be  sought  and  obtained  at  any  time  in  the  local 
courts,  and  it  is  hardly  probable  that  any  reckless  risk  of 
that  sort  will  be  invited. 

’On  the  broad  and  high  ground  of  the  public  good  the 
closed  shop  is  condemned  by  the  appellate  court.  The 
system  is  declared  to  be  in  restraint  of  trade  and  against 
sound  public  policy.  In  this  sense  the  ruling  may  have 
an  important  bearing  on  that  most  momentous  issue  of 
the  times — the  problem  of  curbing  and  regulating  the 
great  industrial  trusts  or  monopolies.  Judge  Adams 
places  “the  union  labor  trust”  on  the  same  plane  with 
the  industrial  trusts  as  an  agency  whose  inevitable  ten¬ 
dency  is  to  restrain  trade.  His  opinion  on  this  interest¬ 
ing  point  is  emphatic  and  leaves  not  a  single  loophole  of 
escape  for  the  labor  union  system  placed  under  the  ban. 

It  is  one  of  the  first  great  judicial  opinions,  if  not  the 
very  first,  in  which  union  labor  is  pronounced  a  “trust 
in  restraint  of  trade.”  With  inexorable  logic  the  jurist 
shows  how  the  closed-shop  agreement  demanded  by  union 
labor  is  in  its  essence  a  trust  and  tends  to  create  an  illegal 
monopoly  in  favor  of  one  class  of  workmen — the  members 
of  labor  unions. 

WHY  THE  CLOSED-SHOP  CONTRACT  FAILS. 

Inasmuch  as  no  citizen  may  lawfully  bind  himself  by 
contract  never  to  do  any  work  of  any  kind  during  his 
lifetime,  neither  can  he  contract  or  conspire  to  keep  oth¬ 
ers  idle  for  all  time  unless  they  do  a  certain  thing  to  please 
him — join  a  labor  union.  He  may  individually  deny 
work  to  nonunion  working  people,  but  he  cannot  legally 
contract  to  deny  work  to  any  particular  worker  or  class 
of  workers.  Should  he  do  anything  of  the  sort  he  would 
be  guilty  of  an  unlawful  conspiracy — a  conspiracy  in  re- 


5 


straint  of  trade  and  subversive  of  sound  public  policy — 
and  he  is  liable  to  be  punished  as  one  of  a  despotic  band 
of  conspirators  and  ostracisers. 

Eminent  lawyers  in  practice  at  the  local  bar  have  held 
for  some  time  that  the  “closed  shop”  contract  of  the  labor 
unions  was  a  violation  of  the  common  law  and  the  civil 
code  as  well  as  the  criminal  statutes.  It  was  so  held  in 
a  sensational  opinion  delivered  some  months  ago  by  the 
law  firm  of  Moran,  Mayer  &  Meyer  to  the  Illinois  Manu¬ 
facturers'  association.  It  was  so  maintained  in  the  brief 
of  Tenney,  Coffeen  &  Harding,  Allen  &  Wesemann  and 
James  H.  Wilkerson  submitted  to  the  appellate  court  in 
the  famous  Kellogg  strike  case — that  case  that  has  just 
been  decided  against  the  “dosed  shop”  in  the  opinion 
of  Judge  Adams.  « 

All  the  law  of  the  subject  has  been  presented  in  the 
great  argument  compiled  by  Attorneys  Tenney  and  Wil¬ 
kerson.  The  appeal  was  from  the  injunction  granted  by 
Judge  Holdom  against  the  strikers  at  the  plant  of  the 
Kellogg  Switchboard  Company. 

For  the  strikers  Attorney  Clarence  S.  Darrow  sub¬ 
mitted  a  brief  which  the  court  has  quoted  “as  illustrative 
of  their  view  of  the  case,”  as  follows : 

“How  do  picketing,  patrolling  or  even  slugging  affect 
property  rights  except  in  the  most  fantastic  sense?  In¬ 
jury  to  business  has  no  independent  existence  whatever, 
because  business  has  no  tangible  existence  to  be  injured 
in  the  true  and  unperverted  sense.” 

But  the  court  very  promptly  rejects  and  scouts  Mr. 
Darrow's  fantastic  interpretation  of  the  law,  citing  against 
counsel  as  “elementary  principles”  that  “a  man's  business 
is  his  property”  and  “that  the  freedom  of  business  action 
lies  at  the  foundation  of  all  commercial  and  business  en¬ 
terprises.” 

TEXT  OF  THE  OPINION. 

The  gist  of  Judge  Adams'  opinion  is  contained  in  the 
following  synopsis  copied  from  the  records  of  the  ap¬ 
pellate  court: 


6 


"In  the  present  case  we  think  the  petitions  amply  suf¬ 
ficient;  that  it  is  not  necessary  that  one  shall  be  a  party 
to  the  bill  or  officially  served  with  the  writ  in  order  for 
him  to  be  bound  by  the  injunction,  but  only  that  he  shall 
have  actual  notice  of  it.  It  is  contended  that  the  con¬ 
tempts  are  criminal  and  appellants  should  have  been  dis¬ 
charged  on  their  answers.  The  relief  sought  is  a  per¬ 
manent  injunction  and  preliminary  thereto  a  temporary 
one  of  the  same  character  as  the  permanent  one  prayed. 
Manifestly  the  preliminary  injunction  is  for  the  benefit 
of  the  complainant  and  therefore  its  enforcement  is  for 
its  benefit. 

"The  injunction  and  its  enforcement,  being  for  the 
complainant’s  benefit,  the  proceedings  must  be  regarded 
as  civil.  Appellant’s  counsel  object  to  the  overruling  by 
the  court  of  motions  for  bills  of  particulars  and  to  a  hear¬ 
ing  on  affidavits  instead  of  calling  witnesses  and  examin¬ 
ing  them  in  open  court.  It  was  clearly  a  matter  #within 
the  discretion  of  the  court  as  to  whether  or  not  a  bill  of 
particulars  should  be  ordered.  And  we  are  of  the  opin¬ 
ion  that  bills  of  particulars  were  unnecessary  to  enable 
appellants  to  prepare  their  defense,  as  the  affidavits  set¬ 
ting  forth  the  facts  are  made  a  part  of  the  informations. 
Defendants  admitted  that  they  were  picketing  complain¬ 
ant’s  place  of  business  and  interferng  with  ks  employes 
and  with  persons  seeking  employment  with  it,  notifying 
them  of  the  strike  and  persuading  the  former  to  leave  its 
employ  and  the  latter  not  to  enter  it. 

"Appellants  deny  that  they  used  force,  threats  or  in¬ 
timidation  of  any  sort  and  say  they  were  peaceable  and 
mildly  persuasive.  But  the  very  presence  of  a  large  num¬ 
ber  of  pickets,  with  the  avowed  purpose  of  preventing 
plaintiff’s  employes  from  remaining  in  its  employ  and  of 
preventing  those  seeking  employment  from  entering  it 
was  in  itself  intimidation.  When  a  thousand  laborers 
gather  around  a  railroad  track  and  say  to  those  who  seek 
employment  they  had  better  not,  and  that  advice  is  sup¬ 
plemented  every  little  while  by  a  terrible  assault  upon 
one  who  disregards  it,  everyone  knows  something  more 


7 


than  advice  is  intended.  It  is  coercion,  force;  it  is  the 
effort  of  many  by  the  mere  weight  of  numbers  to  compel 
the  one  to  do  their  bidding. 

SLUGGING  AND  THREATS  BY  PICKETS. 

“The  affidavits  show  that  defendants  picketed  and  pa¬ 
trolled  around  and  about  complainant’s  place  of  business, 
watching  the  streets,  alleys  and  approaches  thereto,  daily 
shifting  their  positions ;  that  they  so  stationed  themselves 
that  the  complainant’s  employes  were  obliged  to  pass 
through  their  picket  line ;  that  their  attitude  was  ugly  and 
menacing  such  as  to  cause  fear  in  the  mind  of  an  ordi¬ 
nary  person.  Complainant’s  employes  and  persons  seek¬ 
ing  employment  were  waylaid  on  their  way  to  and  from 
the  factory;  they  were  insulted  and  threatened  and  in 
numerous  instances  assaulted  and  beaten  by  the  strikers, 
pickets  and  patrollers,  and  complainant’s  business  was 
seriously  and  injuriously  interrupted.  All  teaming  and 
hauling  of  merchandise  to.  and  from  complainant’s  fac¬ 
tory  was  stopped. 

“The  purpose  of  the  strike  by  complainant’s  employes 
and  their  prosecution  of  it,  as  described,  was  to  compel 
the  complainant  to  execute  the  agreements  referred  to 
and  made  a  part  of  the  bill.  The  drafts  of  agreements, 
three  in  number,  purport  to  be  with  the  different  unions 
whose  members  were  in  complainant’s  employ.  The 
draft  of  agreement  with  the  Metal  Polishers,  Buffers, 
Platers,  Brass  Molders  and  Brass  Workers’  International 
Union  of  North  America,  International  Union  of  Steam 
Engineers  and  International  Brotherhood  of  Stationary 
Firemen  contain  the  following : 

“ Article  1.  The  party  of  the  first  part  hereby  agrees  to  em¬ 
ploy  none  but  members  of  the  aforesaid  organizations  or  those 
who  carry  the  regular  working  card  of  the  said  organizations, 
provided  the  various  crafts  will  furnish  such  competent  help  as 
may  be  required  by  the  party  of  the  first  part  within  twenty- 
four  hours  after  notification. 

“Art.  7.  There  shall  be  a  steward  for  each  craft  in  each  fac¬ 
tory  appointed  by  the  organization,  whose  duty  it  shall  be  to  see 
that  the  men  working  in  said  factory  belong  to  the  organizations. 


8 


“Art.  8.  It  is  hereby  agreed  by  the  party  of  the  first  part  that 
the  business  agent  of  the  party  of  the  second  part  shall  have  the 
privilege  of  interviewing  any  member  of  the  party  of  the  second 
part  in  the  offices  of  the  party  of  the  first  part  during  business 
hours. 

“Art.  10.  A  sympathetic  strike  to  protect  union  principles 
shall  not  be  considered  a  violation  of  this  agreement. 

“Art.  11.  All  the  apprentices  shall  belong  to  the  union  and 
carry  the  working  card  of  the  organization. 

“Art.  12.  The  number  of  apprentices  not  to  exceed  one  for 
ten  men  or  less  of  the  different  crafts.” 

“That  the  purpose  of  the  strike  was  to  compel  the 
execution  of  the  drafts  of  agreement  is  clear.  It  is 
averred  in  the  sworn  bill  and  deposed  to  in  the  affidavits 
of  De  Wolf,  complainant’s  president ;  Kellogg,  its  secre¬ 
tary  and  treasurer,  and  Edwards,  its  superintendent,  that 
business  agents  of  the  different  unions  called  on  com¬ 
plainant  and  insisted  on  its  executing  the  agreements  and 
that,  when  complainant’s  president  refused,  on  the  ground 
that  the  proposed  agreements  were  unreasonable,  it  was 
threatened  by  one  of  said  business  agents  that  unless 
complainant  would  sign  the  agreements  a  strike  would 
be  called  and  that  said  business  agents  called  a  strike, 
in  response  to  which  about  500  of  complainant’s  em¬ 
ployes  quit  its  employ.  Appellant’s  counsel  admit  in  their 
brief  the  purpose  of  the  strike  is  to  bring  about  the  ex¬ 
ecution  of  the  contracts,  and  at  least  three  of  the  appel¬ 
lants  so  admit  in  their  answers.  It  is  unlawful  to  compel 
one  to  execute  any  contract.  A  contract  executed  under 
duress  is  voidable,  and  duress  is  present  where  a  party 
‘is  constrained,  under  circumstances  which  deprive  him 
of  the  exercise  of  free  will,  to  agree  or  to  perform  the 
act  sought  to  be  avoided.’ 

“Duress  exists  when  a  person  is  induced  to  perform 
an  act  to  avoid  a  threatened  and  impending  calamity. 
Especially  was  the  purpose  to  compel  complainant  to  ex¬ 
ecute  the  agreements  in  question  an  unlawful  purpose. 
Article  1  of  the  agreement  strikes  at  the  right  of  contract 
and  provides  that  complainant  shall  employ  none  but 
members  of  the  several  unions,  thus  discriminating  in 
favor  of  one  class  of  men  and  excluding  all  others.  In 


9 


Matthews  vs.  The  People,  202  Ill.,  389,  the  court,  dis¬ 
cussing  the  constitutionality  of  the  free  employment 
agency  act,  says  (page  401)  :  'An  employer  whose  work¬ 
men  have  left  him  and  gone  on  a  strike,  particularly^  when 
they  have  done  so  withdut  any  justifiable  caus^J  iS  entitled 
to  contract  with  other  laborers  or  Worftrfryn  to  "fill  the 
places  of  those  who  have  left  him.  Any1  Workman,  seek¬ 
ing  work  has  a  right  to  make  a  contract  with  such’  em¬ 
ployer  to  work  for  him  in  the  place  of  any  tfn’e  of  the  men 
who  have  left  him  to  go  out  upon  a  strike. : '  Hier/forc, 
the  prohibition  contained  in  section  8  strikes  at  rig'^t  of 
contract,  both  on  the  part  of  the  laborer  and  of  the  em¬ 
ployer.  It  is  now  well  settled  that  the  privilege  of  con¬ 
tracting  is  both  a  liberty  and  a  property  right.  Liberty 
includes  the  right  to  make  and  enforce  contracts,  because 
the  right  to  make  and  enforce  contracts  is  included  in  the 
right  to  acquire  property.  Labor  is  property.  To  de¬ 
prive  the  laborer  and  the  employer  of  this  right  to  con¬ 
tract  with  one  another  is  to  violate  section  2  of  article  2 
of  the  constitution  of  Illinois,  which  provides  that  'no 
person  shall  be  deprived  of  life,  liberty  or  property  with¬ 
out  due  process  of  law/  It  is  equally  a  violation  of  the 
fifth  and  fourteenth  amendments  of  the  constitution  of 
the  United  States.  The  provision  embodied  in  section 
8  'is  a  discrimination  between  different  classes  of  citizens 
founded  on  no  justifiable  ground  and  an  attempt  to  exer¬ 
cise  legislative  power  in  behalf  of  certain  classes  and 
against  other  classes,  whether  laborers  seeking  work  or 
employers.  It  falls  under  the  condemnation  of  the  con¬ 
stitution/ 

"The  agreement  in  question  would,  if  executed,  tend  to 
create  a  monopoly  in  favor  of  the  members  of  the  differ¬ 
ent  unions,  to  the  exclusion  of  workmen  not  members  of 
such  unions,  and  are,  in  this  respect,  unlawful.  Contracts 
tending  to  create  a  monopoly  are  void. 

"The  legislature  of  the  state  cannot  create  a  monopoly. 


ft 


A 


IO 


VIOLATED  CRIMINAL  CODE. 

“The  purpose  of  the  strikers  is  in  violation  of  the 
criminal  code,  which  provides  as  follows : 

Purpose  to  Enforce  Closed  Shop. 

-  t  See,  158.  If;  •  two  or  more  persons  shall  combine  for  the 
purpose  of  depriving  the  owner  or  possessor  of  property  of  its 
lawful  , use  And  management,  or  of  preventing,  by  threats,  sug¬ 
gestions ‘of  dagger,  or  by  any  unlawful  means,  any  person  from 
being  employed  by  or  obtaining  emplpyment  from  any  such  owner 
or  possessor  of  property,  on  such  terms  as  the  parties  concerned 
ma^ragree  upon,  such  persons  so  offending  shall  be  fined  not  ex¬ 
ceeding  $500  or  confined  in  the  county  jail  not  exceeding  six 
months. 

Sec.  159.  If  any  person  shall,  by  threat,  intimidation  or  un¬ 
lawful  interference,  seek  to  prevent  any  other  person  from  work¬ 
ing  or  from  obtaining  work  at  any  lawful  business,  on  any  terms 
that  he  may  see  fit,  such  person  so  offending  shall  be  fined  not 
exceeding  $200. 

Not  only  was  the  purpose  of  the  strike  unlawful  but 
the  means  used  to  achieve  the  unlawful  purpose  were  un¬ 
lawful.  The  means  used  were  the  acts  heretofore  men¬ 
tioned,  and  thereby  injury  to  the  complainant’s  business. 
The  appellants  and  their  associates  intended  to  stop  the 
business  of  the  complainant  so  far  as  they  possibly  could, 
and  the  evidence  shows  that  they  did  stop  it  in  great 
part  to  complainant’s  injury.  The  following  is  contained 
in  the  brief  of  appellant’s  counsel,  which  we  quote  as  il¬ 
lustrative  of  their  view  of  the  cause :  'How  do  picketing, 
patrolling,  persuading  or  even  slugging  affect  property 
rights,  except  in  the  most  fantastic  sense?  Injury  to 
business  has  no  independent  existence  whatever,  because 
business  has  no  tangible  existence  to  be  injured  in  the 
true  and  unperverted  sense.’ 

BOOMERANG  FOR  ATTORNEY  DARROW. 

“In  the  case  of  the  Union  Pacific  Railway  Company  vs. 
Ruef,  cited  by  counsel  for  appellants,  the  court  says : 
'And  that  one’s  business  is  his  or  its  property  is  likewise 
elementary  and  is  conceded  by  all.’ 


“A  man's  business  is  his  property.  The  freedom  of 
business  action  lies  at  the  foundation  of  all  commercial 
and  industrial  enterprises.' 

"We  know  of  no  well  considered  case,  or,  indeed,  of 
any  case,  holding  that  a  combination  of  persons  to  injure 
the  business  of  another  is  not  unlawful.  That  the  ap¬ 
pellants,  and  others  associated  with  them,  acted  in  con¬ 
cert,  in  unlawfully  endeavoring  to  injure,  and,  in  fact,  in¬ 
juring  complainant's  business  for  an  unlawful  purpose, 
is  fully  sustained  by  the  evidence.  They  conspired, 
banded  together,  to  effect  the  unlawful  purpose,  and  by 
overt  acts  did  all  they  possibly  could  to  that  end.  It  is  not 
necessary  to  prove  an  express  agreement  between  the 
appellants  and  those  associated  with  them.  It  may  be 
proved  by  circumstantial  evidence. 

"Each  conspirator  is  responsible  for  the  acts  and  declar¬ 
ations  of  every  other  conspirator  in  furtherance  of  the 
common  purpose.  The  conspiracy  originated  simultane¬ 
ously  with  the  calling  of  the  strike  and  continued  until 
the  filing  of  the  last  petition,  July  14,  1902.  It  was  a 
single  conspiracy.  And  the  court  on  the  hearing  of  each 
of  the  second  and  third  petitions  did  not  err  in  hearing 
the  prior  evidence.  The  evidence  was  competent  as  trac¬ 
ing  and  showing  the  character  of  the  conspiracy.  It  is 
an  indispensable  condition  of  the  enjoyment  by  each  citi¬ 
zen  of  the  liberty  and  rights  guaranteed  by  the  constitu¬ 
tion  and  laws  that  he  shall  respect  and  not  unlawfully  in¬ 
fringe  upon  the  liberty  or  rights  of  any  other  citizen. 
This  cannot  be  done  with  impunity." 

Jail  sentences  and  fines  imposed  by  Judge  Holdom  on 
twenty-three  of  the  strikers  are  upheld  in  the  opinion. 
But  in  the  case  of  one  defendant,  Mashek,  the  length  of 
the  jail  sentence  is  reduced. 

"Mashek  was  sentenced  to  the  county  jail  for  sixty 
days,"  says  the  opinion,  "while  Christensen  was  sentenced 
to  be  committed  for  only  thirty  days. 

"We  cannot  find  in  the  evidence  any  reason  for  this 
discrimination.  Mashek  is  not  shown  to  have  been  more 
guilty  than  Christensen.  On  the  contrary,  we  think  if 


12 


there  was  any  difference  in  the  guilt  of  the  two  Mashek 
was  the  less  guilty.  The  judgment,  therefore,  in  Mashek 
vs.  The  People,  will  be  reversed  and  judgment  will  be 
entered  here  that  Mashek  be  committed  to  the  county 
jail,  there  to  remain  for  thirty  days,  unless  sooner  legally 
discharged.  In  each  of  the  other  appeals,  the  judgment 
is  affirmed.” 

It  is  likely  that  the  case  will  go  to  the  supreme  court 
of  Illinois  on  further  appeal.  But  there  is  no  chance  for 
it  to  reach  the  highest  tribunal  of  the  nation,  the  United 
States  supreme  court,  as  no  question  of  interstate  com¬ 
merce  is  involved. 

"It  is  impossible  to  exaggerate  the  importance  of  this 
decision/'  said  Horace  K.  Tenney,  in  an  interview. 
“ Judge  Adams  is  one  of  the  most  eminent  jurists  on 
the  bench,  and  I  am  confident  his  decision  will  be  sus¬ 
tained  in  the  state  supreme  court,  to  which  the  cases  are 
likely  to  go  on  another  appeal.  Briefly,  the  grounds  of 
the  decision  may  be  said  to  be  that  the  closed-shop  con¬ 
tracts  are  opposed  to  sound  public  policy,  as  well  as  the 
statutory  and  common  law  and  the  constitution  of  the 
state  of  Illinois.  Why  they  are  opposed  to  public  policy 
is  because  they  are  agreements  in  restraint  of  trade.  The 
reasoning  and  the  law  upon  that  point  are  clear  and  un¬ 
mistakable.  The  strike  was  called  to  enforce  the  con¬ 
tracts  submitted  by  the  union  for  the  closed  shop.  The 
union's  representatives  called  upon  the  president  of  the 
company  and  produced  the  contract,  demanding  that  he 
sign  it  on  penalty  of  having  a  strike  put  in  force  in  his 
establishment.  He  refused  to  sign  and  the  strike  was 
called.  Thus  the  issue  of  the  closed  shop — excluding 
all  but  union  men  from  the  privilege  of  work  in  the  Kel¬ 
logg  plant — was  squarely  presented  to  the  court.  And 
the  court  has  squarely  decided  in  favor  of  the  open  shop, 
which  is  the  open  door  of  trade  and  commerce  in  the 
nation.  The  closed  shop  is  simply  a  boycott  of  work¬ 
men,  and  no  court  in  this  country  has  yet  decided  that 
before  a  man  is  eligible  for  work  in  a  factory  or  store  he 
must  have  a  permit  or  union  labor  card  from  the  officials 


13 


of  certain  organizations  whose  decrees  have  no  binding 
force  tin  law. 

“A  remarkable  feature  of  the  case  was  that  Judge 
Adams  held  the  closed  shop  contract  to  be  a  violation  of 
the  criminal  as  well  as  the  civil  code  of  the  state  of  Illi¬ 
nois.  On  this  point  the  decision  is  significant  in  that  i' 
provides  the  employers  with  a  powerful  weapon  in  future 
negotiations  with  labor  leaders.  It  is  now  clear  that  by 
the  very  fact  a  labor  leader  or  delegation  of  members 
from  a  union  present  a  copy  of  a  closed  shop  agreement 
for  an  employer’s  signature  the  person  or  persons  doing 
such  a  thing  are  amenable  to  the  criminal  code  and  may 
be  given  a  term  in  the  county  jail  for  the  mere  act  of 
demanding  or  asking  the  employer’s  signature.  It  is, 
therefore,  likely  that  no  more  will  be  heard  of  the  pres¬ 
entation  of  agreements  for  closed  shops,  especially  if 
Judge  Adams’  decision  is  affirmed  in  the  court  of  last  re¬ 
sort  in  Illinois.” 

EMPLOYERS’  WEAPON  OF  DEFENSE. 

“It  is  one  of  the  most  important  decisions  ever  rendered 
in  the  courts  of  Illinois,”  said  Attorney  M.  L.  Coffieen. 
“It  points  out  clearly  wherein  the  operations  of  labor  un¬ 
ions  enter  the  domain  of  the  criminal.  It  will  be  an  un¬ 
assailable  barrier  and  protection  for  employers,  as  the 
terrorism  of  labor  unions  is  directly  rebuked  by  Judge 
Adams.  It  is  not  likely  that  the  contract  agreements  for 
the  ‘closed  shop’  can  survive  this  decision.  The  court 
holds  that  the  closed  shop  is  a  crime.  So1  the  employer 
will  have  unanswerable  reasons  in  future  for  refusing  to 
become  particeps  criminis  with  labor  union  leaders  in  any 
agreement,  oral,  written  or  implied,  for  the  maintenance 
of  the  closed  shop  anywhere  in  Illinois.  It  is  no  exag¬ 
geration  to  say  that  the  opinion  means’  the  legal  death 
of  the  closed  shop  and  the  triumph  of  the  nonunion  man’s 
right  to  an  open  shop,  where  he  may  have  an  equal  chance 
with  the  union  worker  to  obtain  and  retain  employment.” 

John  M.  Glenn,  secretary  of  the  Illinois  Manufacturers’ 
association,  said :  “It  is  an  epoch-making  decision  and 


14 


may  prove  the  most  momentous  ever  delivered  on  an  in¬ 
dustrial  question  in  any  court  .of  this  country/’ 

Attorney  Azel  F.  Hatch,  who  recently  won  encomiums 
from  a  distinguished  audience  by  a  paper  entitled  “The 
Rights  of  the  Nonunion  Man,”  which  he  read  before  the 
Literary  Society,  discussed  the  decision  as  follows : 

“The  agreement  which  was  submitted  by  the  unions 
to  the  Kellogg  Switchboard  and  Supply  Company  and 
which  is  commented  upon  in  the  opinion  of  Judge  Adams 
in  the  case  of  Christensen  vs.  The  People  would  have 
created  a  closed  shop.  This  decision  accordingly  passes 
upon  the  legality  of  the  closed  shop  and  states  very 
plainly  and  forcibly  the  law  in  relation  to  the  closed  shop. 

“This  decision  not  only  is  based  upon  the  highest  au¬ 
thority  but  it  commends  itself  to  the  reason  of  every  dis¬ 
passionate  and  fair-minded  person.  The  closed  shop  is 
simply  an  attempt  to  establish  a  local  monopoly  by  ex¬ 
cluding  from  the  shop  all  persons  not  members  of  the 
union  or  unions  there  employed.  It  is  clearly  an  illegal 
combination  for  the  purpose  of  wrong  and  injury  to  oth¬ 
ers  for  the  benefit  of  the  members  of  the  conspiracy, 
and  is  properly  held  to  be  unlawful  and  criminal.  It  fol¬ 
lows  as  a  natural  consequence  that  any  party  to  such 
a  conspiracy,  either  as  an  employer  or  as  an  employe, 
is  liable  to  criminal  prosecution  and  punishment. 

“The  promulgation  and  enforcement  of  the  principles 
laid  down  in  this  decision  will  be  wholesome  in  many 
ways  and  will  tend  to  put  a  stop  to  the  violence  and  as¬ 
saults  upon  nonunionists  who  are  satisfied  to  labor  upon 
the  terms  offered  by  the  employers. 

“Any  combination  of  individuals  for  the  purpose  of  in¬ 
juring  others  or  depriving  them  of  their  lawful  right  to 
contract  or  to  engage  in  employment  ceases  to  be  an 
organization  protected  by  the  law  and  becomes  a  con¬ 
spiracy  as  criminal  as  the  Molly  Maguires  or  Ku  Klux 
Klan.  The  sooner  such  organizations  are  rooted  out  the 
better  for  the  peace  and  security  of  the  community.” 


i5 

CLOSED  SHOP  A  CRIME,  SAYS  MR.  MAYER. 

“The  exhaustive  and  able  opinion  of  the  appellate 
court,  just  rendered  by  Judge  Adams,  the  presiding  jus¬ 
tice,  should  prove  epoch-making/’  said  Levy  Mayer.  “The 
opinion  is  a  thorough  and  rugged  review,  both  upon  prin¬ 
ciple  and  authority,  of  one  of  the  most  important  ques¬ 
tions  that  have  ever  confronted  the  employer.  It  is  the 
first  opinion  rendered  in  this  state  upon  the  question  of 
the  legality  of  a  contract  by  which  the  employer  agrees 
not  to  employ  nonunion  labor. 

“All  other  economic  and  legal  questions  aside,  it  now 
becomes  in  this  state  a  complete  answer  to  the  demand 
of  the  closed  shop  that  the  law  stamps  such  an  arrange¬ 
ment  as  a  criminal  conspiracy.  It  is  elementary  that  the 
crime  of  conspiracy  consists  of  a  combination  of  two  or 
more  persons  to  effect  an  illegal  purpose,  either  by  legal 
or  illegal  means.  The  dispute  has  always  been  as  to 
whether  a  contract  not  to  employ  nonunion  labor  is  an 
agreement  to  effect  an  illegal  purpose.  It  has  been  as¬ 
serted  over  and  over  again  by  those  advocating  the 
closed  shop  that  an  agreement  to  employ  only  union  labor 
is  perfectly  legal  and  binding. 

“The  courts  have  frequently  heretofore  held  illegal  an 
agreement  among  members  of  an  association  to  withdraw 
their  patronage  from  anyone  who  sold  to  one  who  was 
not  a  member  of  the  association  or  an  agreement  which 
permitted  members  of  an  association  to  make  purchases 
only  from  such  as  sell  exclusively  to  members  of  the  as¬ 
sociation.  I  have  never  been  able  to  appreciate  the  dis¬ 
tinctions  which  some  courts  have  endeavored  to  make  be¬ 
tween  cases  of  the  kind  I  have  indicated  and  cases  where 
the  right  to  employ  nonunion  labor  was  involved.  There 
is  no  doubt  that  persons  may  combine  for  legitimate  pur¬ 
poses  and  that  an  individual  may  refuse  to  deal  with  any 
particular  person  or  class  of  persons  and  base  such  re¬ 
fusal  upon  mere  whim  or  caprice,  but  it  has  been  my  opin¬ 
ion,  and  I  am  more  than  gratified  to  find  it  sustained  by 
the  appellate  court,  that  a  number  of  persons  cannot  com¬ 
bine  with  the  object  of  compelling  the  adoption  of  a  con- 


i6 


tract  which  prohibits  the  employer  from  employing  non¬ 
union  labor. 

CONTRACT  IS  A  CRIMINAL  CONSPIRACY. 

“If  such  a  contract  is  entered  into  it  is  illegal  and 
under  the  decision  of  the  appellate  court  constitutes  a 
criminal  conspiracy,  to  which  not  only  the  union  but  the 
employer  becomes  a  party  and  for  which  not  only  the 
employe  but  the  employer  is-  subject  to  fine  or  imprison¬ 
ment  in  the  penitentiary,  or  both,  under  our  criminal 
statutes.  There  are  a  vast  number  of  manufacturing 
concerns  in  this  state  that  have  written  contracts  with 
labor  unions  which  prohibit  the  employment  of  nonunion 
labor.  Under  this  decision  of  the  appellate  court  many 
hundreds,  if  not  thousands,  of  employers,  as  well  as 
many  thousands  of  employes,  have  thus  deliberately  be¬ 
come  parties  to  a  criminal  conspiracy  of  which  the  con¬ 
tracts  furnish  the  written  and  unanswerable  proof. 
Where  such  arrangements  exist  the  crime  cannot  be  wiped 
out  by  the  cancellation  of  the  contracts,  but  a  continued 
recognition  of  the  binding  force  of  such  contracts,  in 
the  light  of  the  recent  decision  of  the  appellate  court,  may 
create  trouble  of  a  kind  little  dreamed  of  by  those  who 
have  permitted  themselves  to  be  forced  or  lulled  into 
them. 

“The  fact  that  laborers  have  the  right  to  refuse  to 
work  for  a  man  who  does  not  employ  union  labor,  or  in 
order  to  better  their  condition  or  advance  their  wages, 
does  not  authorize  the  making  of  a  contract  under  which 
the  employer  is  compelled  to  employ  only  union  labor  and 
to  discharge  nonunion  labor.  The  rights  of  the  employer 
and  employe  are,  and  should  be,  synonymous,  but 
employes  cannot,  by  combination  or  union,  without 
committing  the  crime  of  conspiracy,  force  employers  to 
agree  to  employ  only  union  labor.  When  employers  do 
become  parties  to  such  an  agreement  they  are  equally 
guilty  of  conspiracy. 

“The  opinion  of  the  appellate  court  should  be  studied 
at  once  by  every  employer  of  labor  in  this  state  and  when 


17 


the  employer,  awakes  to  the  situation  that  he  is  a  party  to 
a  criminal  conspiracy  the  floodgates  will  open  and  non¬ 
union  labor  will,  I  think,  receive  the  protection  that  all  of 
the  injunctions  and  processes  of  the  courts  have  hereto¬ 
fore  been  unable  to  give  them.” 


Closed  Shop  Unlawful  and  Criminal. 

Of  all  the  court  decisions  affecting  the  right  of  contract 
none  is  of  such  vital  importance  to  employers  and  em¬ 
ployes  as  the  one  recently  handed  down  by  the  appellate 
court  of  Cook  county  concerning  what  is  known  as  the 
“closed  shop”  contract,  for  it  goes  to  the  very  heart  of  the 
question  out  of  which  arises  the  chief  contention  between 
labor  unions  and  employers. 

The  decision  of  the  appellate  court  specifically  declares 
that  the  parties  to  such  contracts,  if  compulsion  be  used, 
are  guilty  of  an  unlawful  act,  and  if  entered  into  volun¬ 
tarily  are  guilty  of  a  criminal  conspiracy.  These  declara¬ 
tions  are  based  upon  the  accepted  principles  of  common 
law,  the  guarantees  of  the  state  and  the  national  constitu¬ 
tion  and  the  specific  language  of  the  criminal  statutes.  • 

Under  the  law  of  contracts  it  is  not  only  unlawful  to 
compel  one  to  execute  a  contract,  but  a  contract  executed 
under  duress  is  voidable.  Such  is  the  nature  of  most  of 
the  “closed  shop”  contracts,  for,  although  the  employer 
apparently  may  exercise  free  will,  the  fact  remains  that 
the  majority  of  closed  shop  contracts  are  executed  to  avoid 
a  strike  or  to  end  one  already  existing,  and  the  court  de¬ 
clares  that  “duress'  exists  when  a  person  is  induced  to  per¬ 
form  an  act  to  avoid  a  threatened  and  impending  calam- 
ity.” 

The  “closed  shop”  contract  is  in  itself  a  denial  of  free¬ 
dom  of  contract  both  to  employers  and  to  nonunion  work¬ 
men  and  therefore  a  violation  of  fundamental  law.  Free¬ 
dom  of  contract  has  been  defined  by  the  supreme  court 
of  the  state  as  both  a  liberty  and  a  property  right.  Labor 
is  declared  to  be  property,  and,  therefore,  to  deprive  the 
laborer  and  employer  of  this  right  to  contract  with  one 


19 


another  is  held  to  be  a  violation  of  section  2,  article  2,  of 
the  constitution  of  Illinois,  which  provides  that  “no  person 
shall  be  deprived  of  life,  liberty  or  property  without  due 
process  of  law.”  The  labor  unionists  have  the  same  free¬ 
dom  of  contract  as  any  other  persons,  but  when  they  enter 
upon  a  contract  for  a  “closed  shop”  they  attempt  to  de¬ 
prive  all  who  may  not  be  members  of  unions  of  the  same 
right,  and  therefore  are  guilty  of  an  unlawful  act. 

The  “closed  shop”  contract,  according  to  the  supreme 
court  decision  to  which  the  appellate  judges  refer,  is 
equally  a  violation  of  the  provisions  of  the  constitution 
of  the  United  States  guaranteeing  “life,  liberty  and  prop¬ 
erty,”  as  in  the  Illinois  constitution,  together  with  the 
further  guarantee  that  the  privileges  shall  never  be 
abridged,  and  prohibiting  discriminations  between  citi¬ 
zens. 

As  the  legislature  of  the  state  is  powerless  under  the 
constitution  to  create  a  monopoly,  it  must  be  apparent  that 
the  labor  unions  cannot  exercise  such  power,  and  there¬ 
fore  the  declaration  of  the  appellate  court  that  the  closed 
shop  agreements  tend  to  create  a  monopoly  in  favor  of 
union  labor,  and  hence  are  unlawful  and  void,  impresses 
one  as  obviously  true  and  legally  sound. 

The  constitutional  provisions  and  general  principles  of 
law  enunciated  in  the  foregoing  have  to  do  with  the  un¬ 
lawful  acts  of  the  parties  to  the  closed  shop  contract  and 
the  illegality  and  invalidity  of  such  an  agreement.  The 
criminal  statute  governing  the  offense  is  not  less  explicit. 
Where  two  or  more  persons  combine  by  unlawful  means 
to  .prevent  any  person  from  obtaining  employment  section 
158  of  the  criminal  code  provides  both  a  fine  and  impris¬ 
onment. 

Under  this  law,  as  interpreted  by  the  decision,  employ¬ 
ers  and  labor  unionists  who  have  entered  into  an  agree¬ 
ment  for  a  “closed  shop”  are  guilty  of  an  unlawful  act, 
which,  if  voluntarily  performed,  constitutes  a  criminal 
conspiracy.  Neither  employers  nor  labor  unionists  who 
hereafter  enter  into  agreements  for  a  “closed  shop”  can 
plead  ignorance  of  their  legal  rights  in  palliation.  If  the 


20 


employer  be  coerced  he  is  nevertheless  guilty  of  an  un¬ 
lawful  act  for  which  there  are  ample  remedies  at  law ;  if 
he  voluntarily  enters  into  such  a  contract  he  can  be  prose¬ 
cuted  under  the  criminal  statutes. 

The  “closed  shop”  is  the  crux  of  the  whole  labor  union 
situation.  It  is  not  a  subject  for  legislation  to  be  made 
the  shuttlecock  of  vociferous  demagogues,  but  one  to  be 
dealt  with  by  the  dispassionate  judgment  of  the  courts. 
The  beginning  made  by  the  appellate  court  of  Cook 
county  is  an  indication  that  the  question  will  be  deter¬ 
mined  in  accordance  with  the  established  principles  of  jus¬ 
tice  and  right.  There  is  every  reason  to  believe  that  the 
supreme  court  will  take  the  same  view  of  “closed  shop” 
contracts  as  that  held  by  Judges  Adams,  Windes  and  Ball 
of  the  appellate  court,  for  the  latter  are  all  men  of  long 
judicial  experience  and  of  able  and  temperate  judgment. 

Moreover,  the  decision  of  the  appellate  court  rests  in 
part  upon  a  decision  of  the  supreme  court  and  there  is  no 
utterance  of  the  appellate  court  at  variance  with  that  de¬ 
cision. 


[From  the  Chicago  Chronicle] 


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